329 F.

2d 158

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.
ATKINSON DREDGING COMPANY, Respondent.
No. 9090.

United States Court of Appeals Fourth Circuit.

Argued Nov. 7, 1963.
Decided Feb. 24, 1964, Certiorari Denied June 8, 1964, See
84 S.Ct. 1647.

Joseph C. Thackery, Atty., National Labor Relations Board (Arnold

Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel,
Marcel Mallet-Prevost, Asst. Gen. Counsel, Warren M. Davison, Atty.,
National Labor Relations Board, on brief), for petitioner.
George H. Revercomb, Washington, D.C., and Hugh S. Meredith,
Norfolk, Va. (Vandeventer, Black, Meredith & Martin, Norfolk, Va., on
brief), for respondent.
Before HAYNSWORTH and J. SPENCER BELL, Circuit Judges, and
CRAVEN, District Judge.
J. SPENCER BELL, Circuit Judge.

The National Labor Relations Board petitions for enforcement of its order that
Respondent, Atkinson Dredging Company, collectively bargain with the
International Union of Operating Engineers, Local Union 25, Marine Division
AFL-CIO (hereinafter the Union), as the certified representative of
Respondent's employees.1 Respondent's admitted refusal to bargain is based on
its contention that the Board improperly certified the Union after erroneously
permitting ineligible former employees to vote in the representation election of
May 4, 1961.

Respondent, a Florida corporation with its principal place of business at Great

Bridge, Virginia, is engaged in marine construction and land reclamation
between the eastern shore of Virginia and Key West, Florida. Respondent

operates intermittently three dredges (the Enterprise, the Northwood, and the
Hampton Roads), and hires workmen to operate these dredges, with the exact
number employed dependent upon the available work. Upon application of the
Union and after a representation hearing, the Board directed an election to be
held on May 4, 1961, among 'all employees of Respondent engaged in dredging
operations' employed during the payroll period ending April 1, 1961.
3

At the election a total of thirty-five employees presented themselves to vote,

including twenty-two employees whose names were not on Respondent's
eligibility list. In accordance with Board policy, the ballots cast by these
twenty-two men were challenged by the Board agent. Of the unchallenged
ballots, five were for the Union and eight against. Since the challenged ballots
were sufficient in number to affect the results of the election, the Regional
Director conducted an investigation and directed that a hearing on the
challenged ballots be held on September 19 and 26. Respondent was present
and participated in the hearing. On October 27, the hearing officer issued his
Report on Challenges, recommending that eight challenges be sustained and
that fourteen be overruled and the ballots counted. Respondent filed exceptions
to the recommendation that ten challengs be overruled, but made no exceptions
to the remaining four. In a Supplemental Decision and Direction issued on
April 11, 1962, the Board upheld the hearing officer's recommendation that
fourteen of the challenged ballots be counted, but reversed the hearing officer's
recommendation that the challenge to the ballot of one Floyd Hewitt be
sustained. Thus, fifteen additional ballots were added to those already counted,
resulting in a union victory of fifteen to thirteen.

Respondent's consistent position has been that ten ballots were cast by former
employees who had been severed from the Company payroll without
'reasonable expectation of employment within a reasonable time in the future.'
Whiting Corp. v. N.L.R.B., 200 F.2d 43, 45 (7 Cir. 1952). Respondent argues
that the dredging business is subject to fluctuations and that no new dredging
contracts may be obtained for an indefinite future period. It also argues that the
Company more often than not hires local personnel at the sites of the dredging
jobs obtained and that consequently there is no substantial continuity among its
employees. On these grounds, Respondent reasons that the certification of the
Union was improper (based as it was on ballots cast by permanently laid off
employees) and, therefore, Respondent cannot be charged with a refusal to
bargain. Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 154, 61 S.Ct.
908, 913, 85 L.Ed. 1251 (1941); American Federation of Labor v. N.L.R.B.,
308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1940).

Upon a review of the whole record we find that the Board's determination to

the contrary is supported by substantial evidence. In the Board's decision and

order of April 15, 1963, in the complaint case, the prior certification was
considered and reaffirmed. Thus in ruling that Respondent had committed an
unfair labor practice the Board necessarily found that no ineligible former
employees had voted in the representation election of May 4, 1961. In this we
concur. Since Respondent only contests the counting of ten of the fourteen
challenged ballots, we must assume that the remaining four were properly
counted. Of the contested ten, Respondent takes exception to one on the ground
that the employee casting the ballot had been injured in February and was not
working on either the eligibility date, April 1, or the date of the election, May
4; to two others on the ground that they were employed neither on the eligibility
date nor on the date of the election; and to seven others on the ground that
while employed on the eligibility date, they were laid off prior to the election
date without a reasonable expectation of recall.
WALTON GILLIKIN
6

The record reveals that Walton Gillikin was working for Respondent on the
Hampton Roads dredge in February, 1961. On February 11, he injured his
finger and was sent to a doctor for treatment by the Captain of the Hampton
Roads. Walton Gillikin stayed at home approximately a month, allowing his
finger to heal, and then twice sent word back to the Captain-- once by a fellow
employee ad once by the Captain's brother-- that he was ready to return to
work. Walton Gillikin was not recalled by Respondent, and accepted
employment with a plumbing company sometime after the eligibility date of
April 1, but prior to the election date of May 4. This job lasted approximately
six or eight weeks and he then accepted other employment.

The informal practice utilized by Respondent's laid off employees of sending

word back by fellow employees when they are ready to return to work is a
procedure recognized and accepted by both employees and responsible
company officials. Walton Gillikin, therefore, was justified in making known in
this fashion his ability and desire to return to work. Although the record is
silent as to whether the message were actually received by the Hampton Roads
Captain, we think that the important point is that Gillikin attempted to make
known his availability for work. Testimony of the Company vice-president is to
the effect that an injured employee is still considered an employee if he
expresses a desire to return to work after recovery from his injury. Therefore,
the Board properly considered Walton Gillikin to be on temporary sick leave
and entitled to vote in the election.
BERKLEY GILLIKIN and LEON T. ROSE

Berkley Gillikin was first employed by Respondent on the dredge Hampton

Roads in August of 1955. During the next five years he was employed
principally by Respondent, although subject to the usual pattern of layoff and
recall. He was most recently employed on the Hampton Roads on April 11,
1961, and worked until May 1, 1961, when he was laid off with Vice-President
Todd's promise that he would be recalled 'after the election.' Shortly after May
1, the Hampton Roads began a new dredging job, but Berkley Gillikin was not
recalled and accepted a permanent job with Construction Aggregates on May 5,
1961, the day following the election.

Leon T. Rose was first employed by Respondent in the early part of 1960 on
the dredge Hampton Roads and thereafter experienced several layoffs and
recalls. Rose was laid off in February of 1961, but was recalled on April 15 and
then laid off again on May 1. Thus, like Berkley Gillikin, Rose was employed
by Respondent neither on the eligibility date, April 1, nor on the date of the
election, May 4. On May 1, however, he was told by Dewey Merrill, Company
Superintendent, that the laid off Hampton Roads employees would be called
back after the election and to leave word as to how he could be contacted. Rose
was not recalled and was employed by another firm two days after the election.

10

HUGH BROWN, WILLIE B. BROWN, DONNIE GILLIKIN, HAMPTON

LEONARD, ELDRED ROBINSON, R. D. SELLERS, and C. R. DIXON, JR.

11

These seven men, with varying records of previous employment with

Respondent, were all discharged by Respondent upon completion of the
dredging project at Wilmington, North Carolina, by the dredge Enterprise on
April 29, 1961. Each of these men was employed on the eligibility date of April
1, but was not employed on the day of the election, May 4. At the time of the
April 29 layoff, however, the crew was told by Assistant Superintendent
Masich or by Captain Norman Gillikin, either that the job was completed and
that they would be laid off and called back when work was available, or when
other dredges had work, or be transferred to the dredge Hampton Roads. The
eligibility list prepared by Respondent for the election on May 4, however,
excluded sixteen of the Enterprise crew members, describing them as
'employees who worked during the payroll period ending April 1, 1961, whose
employment has terminated: Job completed.'

12

In view of the above mentioned assurances by responsible company officials to

Berkley Gillikin and Leon T. Rose and to the seven former crew members of
the Enterprise we find support for the Board's determination that these nine
men were temporarily laid off and at the date of the election held a reasonable
expectation of reemployment within a reasonable time in the future. Questions

of eligibility frequently arise where the nature of the enterprise produces

intermittent employment. In such enterprises, potential employees not working
at the time of a representation election are often given the right to vote. The
reason for this practice is clear. As stated by Judge Swan in Marlin-Rockwell
Corp. v. N.L.R.B., 116 F.2d 586, 588 (2 Cir. 1941):
13

'A man who is laid off with reasonable expection of being called back as soon
as the employer's business picks up may well be concerned in the working
conditions to which he will probably return and feel a lively interest in the
selection of a collective bargaining representative. It is not unreasonable to
include such a man in the voting unit.'

14

The Fourth Circuit has upheld Board decisions which permitted unemployed
seasonal employees to vote where they 'had at the time of the election a
reasonable expectation of reemployment within a reasonable time in the future.'
N.L.R.B. v. Jesse Jones Sausage Co., 309 F.2d 664, 665 (4 Cir. 1962).
Respondent would have us give too narrow an interpretation to the Jesse Jones
Sausage case and limit its application to seasonal industries where employees
have a reasonable expectation of reemployment at a specific time in the future.
There is nothing in the language or logic of the case to so restrict its
application. Other Circuits have extended its rationale to sporadic as well as
seasonal employment. See, e.g., Whiting Corp. v. N.L.R.B., supra; MarlinRockwell Corp. v. N.L.R.B., supra. The Board also recognizes that sporadic as
well as seasonal employees should be permitted to vote in representation
elections. See, e.g., Scoa, Inc., 52 LRRM 1244 (1963) (on call floaters of retail
department store); Independent Motion Picture Producers Ass'n, 44 LRRM
1265 (1959) (musicians); Sucesores de Abarca, 31 LRRM 1096 (1952)
(shipboard employees performing services as mechanics, welders, and
laborers), L. Antonsanti, Inc., 30 LRRM 1468 (1952) (construction and
maintenance employees).

15

Respondent's hiring history indicates that it usually recalls workers with

previous experience as dredging contracts are obtained. The dredging business
is subject to fluctuation; yet Respondent continues operations and has not seen
fit to liquidate. Thus, the number of workmen to be required at a given future
date is uncertain, but the probabilities are that some unknown number will be
employed. In this situation, Respondent's employees have made the necessary
adjustments. When laid off by Respondent they seek employment with other
dredging companies, turn temporarily to employment in other fields, or go on
relief.

16

Respondent's employees are largely drawn from tidewater Virginia and North

Carolina, and consider dredging their primary occuption. Although there is no

seniority system with regard to layoffs and recalls, Respondent and its
employees apparently have evolved an unofficial understanding that men with
previous experience who live in the area will be recalled as jobs become
available. This tacit understanding was made explicit in the present case by
Respondent's officials indicating to nine discharged employees that their layoff
was temporary and that they would be rehired. Although no such indication was
made to Walton Gillikin, we think that he remained in an employee status while
allowing an injury received on the job to heal. Walton Gillikin was sent to a
doctor by his Captain and was told to stay home until the broken finger
mended. His informal, but customary, message sent to Respondent's officials
attempting to inform hem of his readiness to return to work served to reaffirm
the continuing employee-employer relationship.
17

Respondent advances another argument in its attempt to invalidate the election.

Citing the Marlin-Rockwell case, supra, Respondent suggests that because
Berkley Gillikin and R. D. Sellers were employed by other concerns on the day
of the election their votes should not have been counted. While it is true that an
employee who has accepted permanent employment elsewhere on the day of an
election may not vote, Morenci Corp., 30 LRRM 1403 (1952), no such
situation existed here as regards these two men.

18

Berkley Gillikin, contrary to Respondent's contention that he was a regular, full

time employee of Construction Aggregates as of May 4, 1961, was not
employed by that concern until May 5.2 The record is less clear as to the
employment statute of R. D. Sellers. From the record we are unable to say
whether he was employed elsewhere as of May 4, 1961, or later, and to
determine whether such other employment was temporary or permanent.3
Lacking a more definite record, we are unable to say that the Board incorrectly
determined this man to be temporarily laid off and without permanent
employment elsewhere at the time of the election. In this instance, the burden is
on Respondent to show that the Board determination of eligibility was
erroneous, not on the Board to prove it correct. Cf. N.L.R.B. v. Huntsville Mfg.
Co., 203 F.2d 430 (5 Cir. 1953).

19

Respondent introduced evidence that several other employees who were

permitted to vote were employed elsewhere subsequent to the election, but as
we stated in the Jesse Jones Sausage case: 'developments after the election
'cannot color the picture as it stood on the critical date." Thus, even if these
other employees obtained permanent jobs with companies other than
Respondent subsequent to the date of the election, this fact would be irrelevant
in determining the outlook for future employment with Respondent as it existed

on May 4, 1961.
20

Respondent raises a final point. Officials of Respondent allegedly overheard

Walton Gillikin, at the close of the hearing on challenges on September 28,
1961, ask Peter Buono, Business Representative of the Union, 'Where is my
money?' Although the Board's rules and regulations provide that objections to a
representation election must be filed within a five day time limit prescribed by
Sec. 102.69(a), 29 CFR 102.69(a), Respondent contends that since this
statement was made some four months after the election, it could not have
presented objections within the prescribed time limit. Respondent therefore
earnestly contends that this court should remand this case and order the Board
to give Respondent an opportunity to present further evidence on the validity of
the election in accordance with the procedure established in N.L.R.B. v. Lord
Baltimore Press, Inc., 300 F.2d 671 (4 Cir. 1962) and N.L.R.B. v. Poinsett
Lumber & Mfg. Co., 221 F.2d 121 (4 Cir. 1955).

21

Respondent's position is that this remark warrants an inference that Walton

Gillikin had been paid to vote for the union four months earlier. We think the
Board committed no error in refusing to convene a hearing at Respondent's
urgings. Unlike the employer in N.L.R.B. v. Lord Baltimore Press, Inc., supra,
Respondent here did not demonstrate by its offer of proof before the Board that
its evidence, if presented, would strongly tend to show that a bribe had been
made to influence the outcome of the election. Respondent was not prepared to
offer Walton Gillikin as a witness to substantiate its charges of misconduct and
indeed, offered nothing in addition to the single remark, 'Where's my money.'
We are not prepared to say that this remark, without more, raised 'substantial
and material factual issues' under Rules and Regulations Sec. 102.69(d) which
would have required an investigation by the Board into the conduct of the
election.

22

Enforcement ordered.

The Board's order was based on a finding that Respondent had violated 8(a) (1)
and (5), 29 U.S.C. 158(a)(1) and (5): '158. Unfair labor practices
'(a) It shall be an unfair labor practice for an employer-'(1) To interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 157 of this title;
'(5) To refuse to bargain collectively with the representatives of his employees,

subject to the provisions of section 159(a) of this title.'

2

Although the following testimony indicates that Berkley Gillikin was uncertain
as to the date of the month that he started working for Construction Aggregates,
it is apparent that he was certain as to the day, i.e., a Friday. The fifth of May in
1961 fell on Friday
'Q. After that job (on the Hampton Roads) was completed, you came with the
dredge back to Norfolk? A. Berkley Gillikin) Yes, sir.
'Q. And then you were laid off, is that correct? A. I was laid off with the
understanding that we would be notified Thursday or Friday whether we would
be called back to work, or what to do.
Q. And before that Thursday or Friday, you went to work for Construction
Aggregates, is that correct? A. No, sir.
'Q. You went to work for Construction Aggregates May 4th? A. That was on
Friday, wasn't it?
'Q. Was that on Friday? A. Yes, sir.
'Q. So on the Thursday or Friday following the Saturday in which you last
worked, is that correct, Saturday is the last day you worked? A. Saturday was
the last day I worked for Atkinson Dredging Company.
'Q. Yes. (69) A. That was the last day I work for Atkinson.
'Q. And the following Friday you went to work for Construction Aggregates, is
that correct? A. Yes, sir.'

'Q. Are you working at the present time? A. (R. D. Sellers) Yes, sir, I am with
the Norfolk Dredging Company now
'Q. When were you first employed with the Norfolk Dredging Company? A.
Well, I don't recall exactly. It was a month and a half to two months later.
'Q. A month and a half to two months after your lay-off on April 29, 1961? A.
Yes, about then.
'(Hearing Officer) Were you working anywhere else during that two months'
period?
'(The Witness) I worked with Construction Aggregates a couple of weeks, just
before-- it was after the lay-off.

'Q. That would be in June, some time in June, 1961? A. I can't recall exactly
when it was, it was about a month after I got laid off.'